Langston v. National Media Corp.

CIRILLO, Judge,

concurring and dissenting.

I agree with the majority’s conclusion that pursuant to the underlying policies of common law arbitration, 42 Pa.C.S.A. § 7341, and the case law of this Commonwealth, a trial court has authority to grant injunctive relief pending the determination of arbitrability. However, I dissent from that portion of the opinion which affirms the trial court’s grant of a preliminary injunction against MAI. Although the majority correctly vacated the portion of the injunction relating to NMC, I find that Langston failed to carry her burden of proof for an award of injunctive relief as to both NMC and MAI. Three County Services, Inc., supra.

Although a trial court possesses the authority to grant injunctive relief in an arbitrable dispute, even though the underlying dispute has not yet been declared arbitrable, the prerequisites for injunctive relief must still be met. In order to grant a preliminary injunction, the plaintiff must prove that the injunction is necessary to prevent an irreparable harm, the right to relief is clear, and the need for relief is immediate. Churchill Corp. v. Third Century, Inc., 396 Pa.Super. 314, 328, 578 A.2d 532, 539 (1990). In addition, the plaintiff must show that greater injury will result from refusing the injunction than in granting it. Hospital Association of Pennsylvania v. Commonwealth Dept. of Public Welfare, 495 Pa. 225, 433 A.2d 450 (1981). The requisites for a preliminary injunction are cumulative; thus, if one element is lacking, relief may not be *622granted. Leonard v. Thornburgh, 75 Pa.Commw. 553, 463 A.2d 77 (1983).

The majority reasons that Langston’s right to equitable relief was clearly provided for in the employment contract with MAI. I disagree. Langston did not demonstrate that she had a clear right to relief. Churchill, supra. Pursuant to the employment contract between Langston and MAI, Langston could demand arbitration only when there existed a dispute over the “termination” of her employment. The majority, in line with the trial court’s decision, holds that this language provides her with a right to equitable relief. To the contrary, the preponderance of the evidence at trial did not demonstrate such a clear right to relief. There was no evidence put forth that MAI or NMC terminated Langston; rather, most of the evidence indicates that she had voluntarily resigned.1 Since Langston was not “terminated,” she possessed no contractual right to demand arbitration in the first instance, let alone the right to compel NMC and/or MAI to escrow funds or share arbitration fees. It is my belief, therefore, that Langston did not show a clear right to relief.

Even though the Pennsylvania Supreme Court has stated that the “clear right” requirement is not intended to mandate that one seeking a preliminary injunction establish his or her claim absolutely, a plaintiff must still show that there is a threat of immediate and irreparable harm, and that the injunction would do no more than to restore the status quo. Fischer v. Dept. of Public Welfare, 497 Pa. 267, 270-271, 439 A.2d 1172, 1174 (1982). Langston failed to demonstrate that she suffered any potential or immediate irreparable harm that could not be remedied later through monetary damages. *623Langston claimed that the injunction was necessary to prevent harm that could not be compensated by damages because of the alleged financial stress to NMC as a result of federal court litigation brought against it. She feared that an adverse result in the federal action would prevent her from collecting a possible judgment or award.

This contention is both factually and legally erroneous. NMC was not a party to the arbitration provisions of the contract; rather, NMC was merely a signatory to the employment agreement. MAI is, therefore, the only party that possessed financial obligations under the arbitration provision of the employment contract. Moreover, since MAI was not a party to the federal lawsuit instituted against NMC, there was no evidence offered that MAI’s ability to comply with its alleged contractual obligations to Langston would be adversely affected by a ruling against NMC in the federal action.

Similarly, neither NMC’s nor MAI’s present or potential financial difficulties constitute a basis for injunctive relief. Our supreme court has held that:

The insolvency of a defendant does not create a situation where there is no adequate remedy at law. In deciding whether a remedy is adequate, it is the remedy itself, and not its possible lack of success that is the determining factor ... The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery at law, on account of the insolvency of the defendants, is not of itself a ground of equitable relief.

Willing v. Mazzocone, 482 Pa. 377, 382-383, 393 A.2d 1155, 1158 (1978) (emphasis added). See also In Re Estate of King, 183 Pa.Super. 190, 194-196, 130 A.2d 245, 248 (1957) (court of equity may not be used to recover a money judgment upon the “blanket allegation” of insolvency of defendant). Therefore, even with proof of insolvency, I would find that the trial court incorrectly determined that Langston had proven immediate and irreparable harm since insolvency is not a ground for equitable relief. Willing, supra.

Langston has also failed to show that she will incur greater injury by refusal of the injunction than MAI and NMC would *624incur were it granted. MAI and NMC will sustain great injury if a stay of the injunction is not granted. Their businesses are cash-intensive; both companies purchase media time and new products for retail sale. Therefore, forcing them to escrow approximately one million dollars pending the outcome of this litigation will tremendously burden business operations. Conversely, Langston has suffered no harm if funds are not placed in escrow. She may maintain an action for breach of cóntract to redress any alleged breaches of her employment contract. Moreover, injunctive relief is not normally available in cases involving employment contract disputes; damage awards are deemed adequate to compensate for losses that result from breaches of contract. Novak v. Commonwealth 514 Pa. 190, 523 A.2d 318 (1987).

I conclude tliat the trial court had no reasonable grounds for granting the preliminary injunctions against either, MAI or NMC. Three County Services, Inc., supra. I would, therefore, grant the request for stay of the injunction.

. Langston had threatened to resign three times in eleven months, including when she sought renegotiation of the employment agreement at issue. No one from MAI or NMC ever informed Langston that she had been terminated. Additionally, Mr. Turchi, Chairman and Chief Executive Officer of NMC, requested that Langston call him to discuss matters. The next day, however, Langston called her attorney at 6:30 a.m. without calling Mr. Turchi or any other representatives of MAI or NMC. After hearing nothing from Langston, MAI and NMC believed that she intended to resign and, therefore, sent her a confirmatory letter.